Salem Police Emps. Union v. City of Salem
| Decision Date | 30 March 2021 |
| Docket Number | Case No. RC-010-19 |
| Parties | SALEM POLICE EMPLOYEES UNION, Petitioner, v. CITY OF SALEM, Respondent. |
| Court | Oregon Employee Relations Board |
RULINGS, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
Mark J. Makler, Attorney at Law, Code 3 Law LLP, Portland, Oregon, represented Petitioner.
Jeffrey P. Chicoine, Attorney at Law, Miller Nash Graham & Dunn LLP, Portland, Oregon, represented Respondent.
On March 30, 2021, Administrative Law Judge B. Carlton Grew issued a recommended order in this matter. The parties had 14 days from the date of service of the order to file objections. OAR 115-010-0090(1). No objections were filed, which means that the Board adopts the attached recommended order as the final order in this matter. OAR 115-010-0090(4), (5).
The petition is dismissed.
DATED: April 15, 2021.
/s/_________
Adam L. Rhynard, Chair
/s/_________
Lisa M. Umscheid, Member
/s/_________
Jennifer Sung, Member
This Order may be appealed pursuant to ORS 183.482.
(REPRESENTATION)
A hearing in this case was held before Administrative Law Judge (ALJ) B. Carlton Grew on August 19, 20, and 27, and September 28 and 29, 2020, by Zoom teleconference hosted in Portland, Oregon. The record closed on December 1, 2020, following the submission of the parties' post-hearing briefs on November 25, and Respondent's motion to strike or dismiss a portion of Petitioner's post-hearing brief on December 1.
Mark J. Makler, Attorney at Law, Code 3 Law LLP, Portland, Oregon, represented Petitioner.
Jeffrey P. Chicoine, P.C., Attorney at Law, Portland, Oregon represented Respondent.
On October 24, 2019, Petitioner Salem Police Employees Union (Union) filed this representation petition with the Employment Relations Board (ERB or this Board). The petition seeks to create a new bargaining unit of "All employees of the City of Salem, Oregon, Salem Police Department in the classification of Police Sergeant." On November 13, 2019, the City of Salem Police Department (Department) filed timely objections to the Petition, stating that (1) the proposed unit employees are "supervisory employees" under ORS 243.650(23)(a) of the Public Employees Collective Bargaining Act (PECBA), and, as a result, cannot be included in a new bargaining unit, and (2) the proposed unit would unduly fragment the Department's workforce.
The issues presented for hearing1 are:
This Board concludes that the Department's sergeants are "supervisory employees" under the PECBA and therefore excluded from bargaining, and therefore dismiss the Petition.
On November 19, 2019, this Board issued a Notice of Hearing including a statement of the issues for hearing listed as above. On August 19, 2020, the ALJ repeated that issue statement at the start of the hearing in this matter. On November 25, 2020, the parties submitted their post-hearing briefs. In its post-hearing brief, Petitioner asserted, for the first time in this litigation, that ORS 243.650(23)(a), which defines the statutory term "supervisor," violates the First Amendment to the US Constitution as interpreted by Janus v. AFSCME, Council 31, 138 S Ct 2448, 201 L Ed 2d 924 (2018).3 Petitioner's Janus argument occupied 10 pages of an 29 page brief, appearing as the first argument. On December 1, 2020, Respondent Department objected to this newly raised issue, noting that the issue was not raised by the Union prior to the filing of its post-hearing brief, was not listed in the issue statement for the hearing issued by the ALJ, and was not raised before the evidentiary record was closed. The ALJ properly sustained Respondent's objection to the introduction of the Federal Constitutional challenge, for the reasons given in the Respondent's December 1 objections, and because Petitioner never sought leave to raise this issue at any time prior to doing so in its post-hearing brief. Cf. Tri-County Metropolitan Transportation District Of Oregon v. Amalgamated Transit Union, Division 757; Amalgamated Transit Union, Division 757 v. Tri-County Metropolitan Transportation District Of Oregon, Case No. UP-001-13,n 16 at 22, 26 PECBR 322, 343 (2014), aff'd without opinion, 279 Or App 811, 381 P3d 1096 (2016). ( ).
The remaining rulings of the ALJ have been reviewed and are correct.
1. The Department is a division of the City of Salem, a public employer within the meaning of ORS 243.650(20).
2. The Union is a labor organization as defined in ORS 243.650(13), and is seeking to become the exclusive representative of the approximately 24 Department sergeants.
3. The Department has a hierarchical command structure for sworn police officers.4 In order of descending rank, the positions are chief, deputy chief, lieutenant, sergeant, corporal, and patrol officer or detective. The chief reports to the city manager.
4. The Department is organized into four divisions, three of which (Support, Investigations, and Patrol) employ sworn police officers and are headed by a Deputy Chief with the title division commander. The fourth division is the Communications Division, headed by a non-sworn Operations Manager.
5. The Support Division performs the Department's administrative functions and has sergeants assigned to supervise and manage the Internal Affairs Unit, Administrative Unit, and Personnel and Training Unit.
6. The Investigations Division is divided into two sections, criminal investigations and special operations, each headed by a lieutenant.
7. The Criminal Investigations Section (CIS) is made up of two units, property crimes and persons' crimes. Each unit is overseen by a sergeant and staffed by detectives. This section is headed by the Criminal Investigations lieutenant. 8. The Special Operations section consists of three special units, the Drug Enforcement Unit, Street Crimes Unit, and Youth Services Unit (YSU). Each of these three units is overseen by a sergeant and staffed by detectives. Those sergeants report to the Special Operations lieutenant.
9. The Patrol Division contains the Patrol Operations section, which employs most of the Department's sworn personnel as patrol officers, and where new officers are first placed and undergo field training. There are 12 patrol sergeants in Patrol Operations, approximately half of the total number of sergeants.
10. The Patrol Division also includes four special units, each of which is staffed by patrol officers. These units are the Behavioral Health Team (BHT), Downtown Enforcement Team (DET), Problem Oriented Policing (POP) Unit, and the Traffic Control Unit (TCU). Each special unit is overseen by a sergeant, and that oversight is each sergeant's primary assignment. The four sergeants report to the Community Response lieutenant. There are also nonsworn employees in the Patrol Division in a bargaining unit represented by a local of the American Federation of State, County, and Municipal Employees (AFSCME).
11. The Communications Division is the regional dispatch center for the City and some nearby jurisdictions. It is overseen, and staffed by, nonsworn employees. The division director reports directly to the chief. A bargaining unit of Communications Division employees is represented by the Professional Communications Employees Association.
12. The primary assignment of the sergeant positions identified above is to work with the identified Department subdivision. Most sergeants also have a secondary assignment leading a special team or cadre. The special teams include the Special Weapons and Tactics Team (SWAT), Hazardous Device Team (HDT or Bomb Team), Mobile Response Team (MRT), Tactical Negotiation Team, and K-9 Team. The officers who serve on these teams do so as their secondary assignments.
13. The cadres on which sergeants may serve as cadre leaders include Emergency Vehicle Operations Certification (EVOC), Defensive Tactics (DT), Confrontation-Simulation (Con-sim), Emergency Trauma (ET), Domestic Violence (DV), and Firearms Training. Not all cadre leaders are sergeants.
14. In addition to the petitioned-for sergeants, the Union represents a separate bargaining unit of Department employees, including all sworn officers below the rank of sergeant (corporals, patrol officers and detectives), nonsworn crime laboratory technicians, and sworn retired officers employed to transport criminals and as background investigators (officer's bargaining unit). At the time of hearing, the Union and City Department were parties to a collective bargaining agreement (Agreement) for the term of fiscal years 2020 to 2024.
15. The Agreement's recognition clause states:
(Exh. P-13 at 1.)
16. The Agreement also states that a supervisor's approval is required for officer bargaining unit members seeking after-hours training, changing Youth Services school assignments, and requests for non-bidded vacations made with less than 24 hours' notice. The relevant...
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